The Tenth Circuit Court of Appeals questioned Wyoming statues which imposed “civil and criminal liability upon any person who “[c]rosses private land to access adjacent or proximate land where he collects resource data.” The court denies a private property argument prevents data collection: “We conclude that the statutes regulate protected speech under the First Amendment and that they are not shielded from constitutional scrutiny merely because they touch upon access to private property. Although trespassing does not enjoy First Amendment protection, the statutes at issue target the “creation” of speech by imposing heightened penalties on those who collect resource data.” The court then says creation of free speech is protected by the First Amendment: “We conclude that plaintiffs’ collection of resource data constitutes the protected creation of speech. The Supreme Court has explained that “the creation and dissemination of information are speech within the meaning of the First Amendment.” Sorrell, 564 U.S. at 570. “Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to 12 conduct human affairs.” Id. If the creation of speech did not warrant protection under the First Amendment, the government could bypass the Constitution by “simply proceed[ing] upstream and dam[ming] the source” of speech.”
Esquire Appeals Court Opinion
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